SZBMF v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 The Appellant is an Indian citizen who was born on 19 August 1980. On 23 August 2001 he was issued with an Indian passport. On 6 February 2003 he arrived in Australia entering pursuant to a temporary resident visa issued to him on 31 January 2003. On 10 February 2003 he lodged an application with the respondent Minister for a Protection (Class XA) visa. That application was refused by the Minister's Delegate on 27 February 2003. 2 On the same day a letter recording the Delegate's decision with reasons attached was sent by registered post to the Appellant. The relevant envelope was apparently received at the address provided by the Appellant whereupon the postal service was informed that the Appellant was "Unknown at Address". 3 Section 66(1) of the Migration Act 1958 (Cth) ['the Act'] requires the Minister to "notify the applicant of the decision in the prescribed way" when the Minister refuses to grant a visa. The prescribed way is to be found in Regulation 2.16 of the Migration Regulations 1994 (Cth) ['the Regulations']. Regulation 2.16 relevantly provides: "2.16(1) For subsection 66(1)...of the Act (which deal[s] with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa. ... (3) The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act." 4 Section 494B provides a number of methods whereby the Minister may give notice of decisions taken by her. These include dispatch of documents by pre-paid post or by other pre-paid means. Section 494B(4) relevantly provides: "494B(4) Another method consists of the Minister dating the document and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or (ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents." 5 In his application for a protection visa, the appellant had also indicated in the space provided for inserting "Your current postal address in Australia" the words "As above" indicating that his postal address was his residential address. 6 There is no issue in the proceedings as to the due notification of the decision of the Minister's delegate by following the procedures stipulated in section 494B(4) of the Act. 7 Section 494C of the Act makes express and precise provision for when documents dispatched to a person in the position of the appellant are taken to have been received by the appellant. Section 494C relevantly provides: "494C(1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B... ... (4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by pre-paid post or by other pre-paid means), the person is taken to have received the document: (a) if the document was dispatched from a place in Australia to an address in Australia - seven working days (in the place of that address) after the date of the document; or (b) in any other case - 21 days after the date of the document." 8 Unlike section 160(1) of the Evidence Act 1995 (Cth), which relevantly provides for the deemed receipt of postal articles sent by pre-paid post "on the fourth working day after having been posted", section 494C(4) of the Act speaks of a person having been "taken to have received" a document seven working days after the date of the document. If this provision, properly construed, means on the seventh working day after the date of the document the relevant date upon which the Appellant was taken to have received the document in question was Monday 10 March 2003. Alternatively, if it was intended by the legislature that seven working days meant seven clear working days, then the relevant document was taken to have been received by the Appellant on Tuesday, 11 March 2003. 9 In Bin Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 Spender, Kiefel and Dowsett JJ said:- "[13] … Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be 'taken to have received the document …'. Nothing in the section suggests that this is merely a rebuttable presumption. In Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77 the Full Court considered a similar, but not identical provision, then found in s 53 of the Migration Act, but now repealed. It provided that in certain circumstances, an applicant was to be taken to have received a notification 'even if it was not received'. At [17], O'Connor and Mansfield JJ observed: … the statutory provisions operated to deem notification of the decision of the delegate of the Minister, notwithstanding that the applicant may not have received actual notification of the relevant decision until some later time than that deemed by the Act and the Regulations or at all. [14] The wording of s 294C is not quite so clear. Spender J, in Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 at [69], observed; The person is 'taken to have received the document', in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only 'until the contrary is proved'. We agree. The sequence of statutory and regulatory provisions to which we have referred proscribes (sic) with precision the steps to be taken in notifying a visa applicant of the outcome of his or her application." 10 Section 412 of the Act makes provision for applications for review to be given to the RRT within the prescribed period, being a period ending not later than 28 days after the notification of the decision. The section relevantly provides: "412(1) An application for review of an RRT reviewable decision must: ... (b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; ... ..." 11 The prescribed period for the purposes of section 412(1)(b) of the Act is specified in regulation 4.31 of the Regulations. That Regulation relevantly provides: "4.31 (1) For the purposes of paragraph 412(1)(b) of the Act, each period stated in subregulation (2) is prescribed as the period within which an application for review of an RRT-reviewable decision to which the period applies must be given to the Tribunal. (2) A period mentioned in subregulation (1) commences on the day on which the applicant is notified of the decision to which the application relates, and ends at the end of: ... (b) in any other case - 28 days." 12 If the Appellant was notified of the decision contained in the Minister's delegate's letter of 27 February 2003 on Monday 10 March 2003, then the relevant 28 day period within which it was open to the Appellant to give the Tribunal his application for review expired on 7 April 2003. If the date upon which he received notification of the decision was Tuesday 11 March 2003 the relevant 28 day period would have expired on 8 April 2003. As it transpires, the Applicant lodged his application for review in respect of the Minister's decision with the RRT on 27 May 2003. The application includes under the section providing for reasons the following: "I lodged protection visa 10th Feb 2003 on D.I.M.I.A. Sydney. I am not received any letter from Department of Immigration. Yesterday I went Sydney D.I.M.I.A. Office asking about my status. They said Department refuse my protection visa on February 2003. I am not received any letter. If I received letter from D.I.M.I.A. I lodged R.R.T. on 28 day time. I am not received any letter. Plesee find D.I.M.I.A. also plesee consider my R.R.T. application now..." 13 It would appear that the Appellant approached the Department on 26 May 2003 inquiring as to his status only to be told that his application had been refused and that he had been "notified the decision DIMIA on 11.03.03". On 2 July 2003 the RRT wrote to the Appellant indicating that it had received the Appellant's application for review on 27 May 2003. Its letter continued: "Unfortunately, it appears your application reached us too late. The Tribunal has no power to consider late applications." 14 The Appellant accepts that the RRT had no power to extend the time within which an application for review may be filed nunc pro tunc. The Appellant does not raise any challenge to the validity of either section 412(1)(b) or section 494C(4) under the Constitution. 15 The sole issue for consideration in the case is whether or not a person who is "taken to have received" a document in accordance with section 494C(4) of the Act is thereby notified of the decision within the meaning of the expression "notification of the decision" in section 412(1)(b) of the Act or the expression "notified of the decision" in Regulation 4.31(2) of the Regulations. 16 Mr Slattery of counsel, who appears for the Appellant, relies on the principle that where two constructions are possible the Court will prefer that construction which will avoid great and unnecessary injustice. He further relies on the principle that in a liberal democracy founded on the principles and traditions of the common law a right to receive actual notice of a decision can only be displaced by a clear and specific provision to the contrary. As he expressed it, if Parliament intended to curtail fundamental rights it must do so in explicit terms which expose it to the political cost of so doing. 17 One can well understand that, in the context of applications for protection visas under the Act, the Minister must be able to rely upon contacting persons in the position of the Appellant by communicating with them by post at their nominated postal address. 18 It is unfortunate that in this instance the Appellant appears not to have received the Minister's delegate's notification of the decision contained in the letter of 27 February 2003 even although the envelope containing the notification was received at the postal address provided by him. Nevertheless it seems to me clear beyond argument that when the legislature provided that a person was taken to have received a document containing the decision by a certain time that person in fact had notification of the decision sufficient to trigger the 28 day time limit within which an application for review must be brought. It seems to me that the Parliament has chosen to curtail what it is submitted were the Appellant's fundamental rights in clear and explicit terms. True it is that the legislature could have said, in section 494C(4), words to the effect "the person is taken to have been notified of any decision contained in the document" within the time indicated, however, as I see it, the expression "the person is taken to have received the document" has the same legal and practical effect. In the foregoing circumstances, I am of the opinion that the appeal should be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.